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PRECEDENTIALUNITED STATES COURT OF APPEALSFOR THE THIRD CIRCUIT No. 09-4209 CHARLES F. KERCHNER, JR.;LOWELL T. PATTERSON;DARRELL JAMES LENORMAND;DONALD H. NELSEN, JR.,Appellantsv.BARACK HUSSEIN OBAMA, II,President Elect of the United States of America,President of the United States of America, and Individually;UNITED STATES OF AMERICA;UNITED STATES CONGRESS;UNITED STATES SENATE;UNITED STATES HOUSE OF REPRESENTATIVES;RICHARD B. CHENEY, President of the Senate,Presiding Officer of Joint Session of Congress,Vice President of the United States and Individually; NANCY PELOSI, Speaker of the House and Individually On Appeal from the United States District Courtfor the District of New Jersey(D.C. Civil No.1-09-cv-00253)District Judge: Hon. Jerome B. Simandle Submitted Under Third Circuit LAR 34.1(a)June 29, 2010Before: SLOVITER, BARRY and HARDIMAN, Circuit Judges(Filed: July 2, 2010)
Case: 09-4209 Document: 003110204058 Page: 1 Date Filed: 07/02/2010
There is a dispute, among courts and commentators, as to
1
whether the provision known as the “Natural Born Citizen” clauseshould be cited as clause 4 or clause 5 of Article II, § 1 of theConstitution.
Compare Hollander v. McCain
, 566 F. Supp. 2d 63,2Mario Apuzzo, EsquireJamesburg, New Jersey 08831-0000Attorney for AppellantsTony WestAssistant Attorney GeneralPaul J. FishmanUnited States AttorneyMark B. Stern, EsquireEric Fleisig-Greene, EsquireAttorneys, Appellate Staff Civil DivisionUnited States Department of JusticeWashington, D.C. 20530-0001Attorneys for AppelleesOPINION OF THE COURTSLOVITER,
Circuit Judge
.Charles F. Kerchner, Jr., Lowell T. Patterson, Darrell J.LeNormand, and Donald H. Nelsen, Jr. (hereafter “Appellants”)filed suit in the United States District Court for the District of New Jersey, alleging that President Barack Obama is ineligibleto hold his Office as President. They rely on Article II, Section1, Clause 4 of the United States Constitution which provides that“No person except a natural born Citizen, or a Citizen of theUnited States, at the time of the Adoption of this Constitution,shall be eligible to the Office of President. . . .” U.S. Const., art.II, § 1, cl. 4. Appellants challenge the District Court’s order
1
Case: 09-4209 Document: 003110204058 Page: 2 Date Filed: 07/02/2010
65 (D.N.H. 2008) (citing the provision as clause 4),
Rhodes v. MacDonald
, No. 4:09-CV-106, 2009 WL 2997605, at *1 n.1(M.D.Ga. Sept. 16, 2009) (same),
and
Gerard N. Magliocca,
Constitutional False Positives and the Populist Movement
, 81 N
OTRE
D
AME
L.
R
EV
.
821,
874
(2006) (same),
with Mathews v. Diaz
, 426 U.S. 67, 78 n.12 (1976) (citing the provision as clause 5),
and
Andrew B. Coan,
The Irrelevance of Writtenness inConstitutional Interpretation
, 158 U.
P
A
.
L.
R
EV
.
1025,
1051(2010)
(same). In any event, the parties agree as to the substanceof the Natural Born Citizen clause, and we use the same citation aswe used in
Berg v. Obama
, 586 F.3d 234, 237 n.1 (3d Cir. 2009).3dismissing their complaint. We will affirm the order of dismissal and direct Appellants’ counsel to show cause why justdamages and costs should not be imposed on him for havingfiled a frivolous appeal.
I.
Appellants, seeking to compel President Obama to“conclusively prove[ ]” that he is eligible to serve as President,Appellants’ Br. at 6, named as defendants President Obama, theUnited States of America, the United States Congress, theUnited States Senate, the United States House of Representatives, former Vice President and President of theSenate Richard Cheney, and Speaker of the House Nancy Pelosi(hereafter “Appellees”). Appellants allege that President Obamaviolated their rights under the Fifth and Ninth Amendmentswhen he assumed office without “conclusively” proving that heis eligible for the presidency and that the legislative branchviolated Appellants’ right under the Petition Clause of the FirstAmendment when Appellants’ request to investigate thePresident’s birthplace and citizenship was ignored. Appellantsalso assert claims under the Fifth and Twentieth Amendmentsagainst Congress, former Vice President Cheney, and Speaker Pelosi, for failing to “properly vet and verify” Obama’scitizenship. Appellants’ Br. at 10. They moreover bring anequal protection claim on the ground that Congress “fullyinvestigated . . . whether Republican Presidential candidate John
Case: 09-4209 Document: 003110204058 Page: 3 Date Filed: 07/02/2010
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